Skirting the Law, Staging Justice
Law has its theaters, its role-playing, its scripts, and it is represented for a public. Law has always been intimately connected with ritual. Legal institutions are well aware that the law is lifeless if restricted to the literal, and that it depends for its spirit on repeated reinforcement, as spectacle, in the public sphere. Law requires bodies upon which to inscribe itself, in order to subject and make subjects of those bodies. To embody the letter of the law, as in the Kafkian penal colony, is to make habit of iterating its text through actions. Through distinct rituals, law is repeated, reinforced, respected, invoked, implemented, avoided, certified, enacted, dictated, and broken.
Power's drama is the repetition of the initial moment of institutionalization, the moment in which the new pact was sealed. This moment is endorsed by the practices of everyday life (which include the constant reenactment of the expropriation which founded the law at the beginning of national history, as it is demonstrated in the intervention of Grupo de Arte Callejero). In the extreme, apparent in the case of a coup, an authority incarnates the law through a representation of subjects only at the total exclusion of their agency. Ubiquitous mass media can be mobilized to support the omnipresence of this authority, rendering power either embodied or disembodied as is demanded for domination. The result is the recreation of the mystical foundation upon which authority's efficacy is based—as Carmen Oquendo shows in the case of the 1973 military coup in Chile, but also in contemporary democratic Argentina, with its legislative spectacles that appeal to a state of policed security, as analyzed by Mirta Antonelli.
But justice is something else. Isn't it? It exists in each one of these stages and rituals of power, forming the horizon of what is possible and pending. These rituals are designed, in the best-case scenario, to conjure up justice without ever making it present for more than a luminous, fleeting instant. Or, these rituals are designed only to postpone/defer and avoid justice, to make of justice only an empty shell. In the end, however, they serve rather in the interest of justice, pulling it closer, granting it urgency, feeding a desire for it.
Law, as Paul Kahn argues, always has totalizing intentions, but any critical study of the law must concern itself also with the borders of the law, with what the law keeps outside its borders.1 Today, new, as-yet-unclassified practices take place at these borders, practices that are not easily identified with the political—their goal is not taking a piece of the power pie—nor in any ready way with the theatrical or the artistic: they don't strive to enter into any established circle, nor to gain legitimacy, recognized artistic value, or cultural capital of any kind. On the contrary, these are practices that strive to intervene in symbolic battles in which allegiances and dissent arise in a shifting arena; practices whose dissemination and results are incalculable. As a consequence, they occupy spaces unprotected by institutional authority, spaces of a certain symbolic vulnerability.
But it must be remembered that the current doctrines of national and international security legitimize certain actions beyond the reach of any law; power performs in these cases not from a site of vulnerability but of impunity. These two sites outside of the law, vulnerability and impunity, interlock and play out in various ways in Coco Fusco's artistic investigation of the techniques of prisoner interrogation. Although no exploration of the law today can avoid consideration of new manifestations of an international juridical order and the potential of a cosmopolitics (as Cosacov makes clear), it should be pointed out that with this new international regime and its adjudication of law and lawlessness comes an increasing criminalization-without-borders. In this criminalization legal reason joins forces with military power to recast old and new geopolitical battles, legitimizing the intervention on the grounds of security against global threats.
One of the tasks pertaining to critical practices and political arts nowadays is the identification of the symbolic operation through which precariousness and vulnerability are allotted to certain subjects: a less than human condition, an unworthiness of legal status, a discounting of subjects' destiny before they are registered in any account (undocumented, imprisoned, criminalized). This adjudication, on the margins but definitive of the law, is sanctioned today in various realms: local, translocal, and transnational. Judith Butler discusses these operations as the unequal allocation of the precariousness that is our condition of living in common. To identify the symbolic operations by which these sanctions are daily enacted and promoted, and to disarm these operations, is the program for today's critical practices.2
In these symbolic battles, the place of the law is not previously agreed upon, but is rather itself a field in dispute, manipulated into accordance with different agendas. On some occasions, law legitimizes vulnerability and impunity (as exposed by Antonelli), perpetuates regimes of exclusion (Kozinn), or endorses a doctrine of policed security that transforms subjects into suspects or potential criminals without trial (Rodriguez). In other cases, vulnerability and impunity are reproduced where legal institutions abandon their function (Schmidt-Camacho). Law is never neutral, but it is nevertheless open to constant re-appropriations. Therefore critical practices must be tactically flexible and sensitive to this lack of a unified system characteristic of the law, denouncing on some occasions the ways in which the law is able to reproduce injustice, and still in some others elaborating tactics to demand legal action, to mobilize the law in favor of justice (as has been done in decades of struggle against human rights abuses).
"My aunts and my neighbors cross themselves when in front of these tribunals as when in front of a graveyard," the collective Mujeres Creando expresses in one of its performative interventions in the tribunals of La Paz, Bolivia. For vast majorities all over the world, the legal apparatus of the state serves only to cause profound distrust, and so they organize everyday practices in careful avoidance of this law and in search of justice elsewhere—since it is not their desire, and perhaps not a possible desire, to abandon the quest for justice. These same subjects might rather take up the most traditional icons of the nation-state in order to interrogate traditions of impunity, and through acts that border on civil disobedience, reenter the struggle that is at the base of the modern project over that sovereignty which admits no representation (as in the case of washing the Peruvian flag presented by Buntinx, or in the 'first amendment mob' of Reverend Billy). There are still other cases (like the circumstances of the imprisoned women presented by Fernanda Vivanco and Ernestina Garbarino, by Suzy Khimm, and by Elizabeth Son), in which it is difficult to predetermine the object of the experience, beyond the intent to listen and to make visible a subject indefectibly under the law, made vulnerable and muted by the penal system, and to recover as much as possible her legal agency. But interrogating the demand of 'artistic expression' within the penal system entails much more than challenging the borders of the system that tolerates this expression, breaking the division inside/outside, etc., as necessary as these steps (taken in all the cases presented here) might be. The conceptualization of all these experiences suggests that a silent and extra-legal verdict had condemned these women well before they were declared criminals,in an exclusion only sharpened and re-legitimated by the penal system and its judicatory conferral of all responsibility for their situation on the women themselves.
It has been argued that we live in a time of judicialization of politics and social relations, perhaps as a direct consequence of the fading legitimacy and efficacy of other models of social change.3 Nevertheless, there is a simultaneous de-judicialization, as Guillermo O'Donnell argues, in the state's deferral for decisions on certain issues to international ruling agencies, or its relinquishing of adjudicatory power in certain conflicts (opening the way for alternative means of resolution, as Corbin's and Mujica's reports on different cases expose), or finally the withdrawal of state judicial authority in the desertion of whole areas that it is supposed to protect (as in the border zone that is the focus of Schmidt-Camacho's article). With regard to these processes of disputed legalities and in these de-judicialized zones, the main symbolic framework for protection against injustice is often international human rights discourse.
The struggle for human rights has increased in force in the last decades by negatively defining justice: justice against unjust power, justice as the capacity to say 'no,' as the ability to say 'enough,' to declare 'never again.' This justice takes its definition from the standpoint of the victim. This historical development triggered changes in the judicial system in many parts of the world, the Americas included; it promoted new forms of agency based on the capacity to form alternative networks, which often remained secret or illegal under circumstances of oppression, rather than directly linked to political parties. Forms of activism emerged that resulted in aesthetic pursuits—not out of any initial search for beauty, but inasmuch as they sought out, of necessity, those spaces which official discourse denied: as they experimented with revealing the presence of what authorities had rendered invisible, speaking the unutterable and evading censorship; as they presented their claims through suggestive actions, through mere corporal presence and ritual silence (women wearing white handkerchiefs in the Argentina fighting the dictatorship; women in black today in Chihuahua fighting indifference; Peruvians burying the bureaucracy that reproduces injustice).
This situation has not been transcended. We see it persists in multiple forms today, in the multiple examples of sovereign power overstepping its bounds, and rights must be defined as a protection against impunity. But other possibilities have developed in parallel to this negative struggle, which point to a redefinition of legality and an active desire to narrow the gap between legality and justice. Some practices thus developed revive items from the accumulated repertoire of the former period (e.g. silhouettes that once called attention to the presence of the officially 'disappeared,' now recast to denounce other forms of injustice). But demands are not limited to calls for power to listen, for deliverance of what was promised, or for recognition. Rights are constantly gained at a local level, and often without waiting for institutional power to concede them; they are gained through collective practices that make visible what has been obscured and ruled inconsequent, dismissed as mere accidents or momentary misalignments of a self-corrective system. Rights discourse might serve as symbolic ground for legal actions that entail a change in our ways of being together, a change not limited to the judicial sphere.
These changes are negotiated through aesthetic struggles, through clashing regimes of perception and sensibility. The outcomes of these political-aesthetic battles rely on the identification of the scenarios of justice: the sites where justice is pending and what is to be done, the deserving subjects who can rightfully claim it, its frame of operation, and a method for calculating injury; as well as identification of injustice currently invisible, declared irrecoverable and non-existent. What appears in all of these articles and presentations is thus a new poetic justice: no longer just a symbolic, cathartic compensation in the dense, self-enclosed universe of the work of art; instead, a poetic justice that works to transform the sensibility, allowing unexpected avenues of political agency to open. A poetic justice as a repertoire of languages and behaviors mobilized to make claims and initiate processes in order to apply terms of justice or injustice to what might have been diagnosed as sheer injury, pain, suffering, or accident. A poetic justice as the embodiment of the pending desire for justice that accompanies any political process, as the attempt to expose the injustice and demand retribution, recognition, compensation, adjudication of penalties. A poetic justice that struggles to represent justice while preserving the awareness that such justice will always remain non-representable and immeasurable.
1. "There is no part of modern life to which law does not extend" (123). Kahn, Paul W. The Cultural Study of Law: Reconstructing Legal Scholarship (Chicago: University of Chicago Press, 1999).
2. Butler, Judith. Precarious Life (New York: Verso, 2004).
3. Sieder, Rachel, Line Schjolden, and Alan Angell, eds. The Judicialization of Politics in Latin America (New York: Palgrave Macmillan, 2005).
